Standing Order 3.20 provides for deputations. Those applying
for deputations are required to give seven working days’ notice of subject
matter and applications are approved by the Chairperson of the Board.
This means that details relating to deputations can be included in the
published agenda. Total speaking time per deputation is ten minutes or as
resolved by the meeting.

At the close of the agenda no requests to speak had been received.

At the close of the agenda no requests for deputations had been
received.

A period of time (approximately
30 minutes) is set aside for members of the public to address the meeting on
matters within its delegated authority. A maximum of 3 minutes per item is
allowed, following which there may be questions from members.

At the close of
the agenda no requests for public forum had been received.

At the close of
the agenda no requests for notices of motion had been received.

Rodney Local
Board Swimming Pool Fencing Exemptions Committee

08 September
2014

Applications
for Special Exemptions under Section 6 of the Fencing of Swimming Pools Act
1987

File No.: CP2014/18594

Purpose

1. The purpose of
this report is to present the Rodney Local Board with applications for special
exemption from some of the requirements of the Fencing of Swimming Pools Act
1987 (the Act).

Executive
summary

2. The Local Board
must conduct a hearing and consider the applications for special exemption. The
local board must resolve to decline, grant or grant subject to conditions, the
exemptions sought.

Recommendation/s

That the Rodney Local Board
Swimming Pool Fencing Exemptions Committee:

a) receives the applications from:

(i) Christopher &
Rochelle Bates – 85 Brigham Lane, Riverhead

(ii) Peter Baron – 63 Brigham
Lane, Riverhead

(iii) Deane & Rhonda Cooper
– 140 Potter Road, Dairy Flat

(iv) Nicholas
& Nadine Barton – 56 Goldflats Lane, Coatesville

(v) Karen
Bennetts – 70 Taumata Road, Omaha

(vi) Keith
Emery – 688 Ridge Road, Coatesville

(vii) Mike
Young – 47 Lloyd Road, Riverhead

(viii) Rachel
Stent – 43 Lynton Masters Lane, Coatesville

(ix) Claudia
Woolner – 70A Wake Road, Coatesville

(x) Glenn
& Lee Clark – 112 Potter Road, Dairy Flat

(xi) Susan
Johnson – 844 Haruru Road, Wainui

(xii) The
Massie Trustee – 851 Ridge Road, Riverhead

(xiii) Paul
Savoury – 143 Ti Point Road, Ti Point

b) determine
the applications, by way of resolution, to:

(i) grant
the application for special exemption as sought, or

(ii) grant the application
subject to conditions, or

(iii) decline
the application for special exemption sought.

Comments

3. Auckland
Council pool inspectors have inspected the properties, which are the subject of
an application before the local board. In each case, the swimming pool fencing
does not comply with that Act. The details of non-compliance are specified in
the attachments to this report. The applicants have chosen to seek a special
exemption from the requirements of the Act.

4. The purpose of
the Act is stated to be “to promote the safety of young children by requiring
the fencing of … swimming pools”.

5. The Act
requires pool owners to fence their pool with a fence. Specific detail on the
means of achieving compliance with the Act is contained in the schedule to the
Act. If a pool is not fenced with a complying fence it is an offence under the
Act, unless exempt.

6. An exemption
can only be granted by the local board after a consideration of the particular
characteristics of the property and the pool, other relevant circumstances and
taking into account any conditions it may impose. Then, only if “satisfied
that an exemption would not significantly increase the danger to young
children”, can an exemption be granted.

7. Defining the
immediate pool area will be relevant to considerations concerning the property
and the pool. The immediate pool area means the land in or on which the pool is
situated and as much of the surrounding area that is used for activities or
purposes related to the use of the pool. The Act provides that the fence
should be situated to prevent children moving directly to the pool from the
house, other buildings, garden paths and other areas of the property that would
normally be available to young children.

8. Another common
consideration for local boards in exemption applications will be instances
where a building forms part of the pool fence. Where doors from a building
open into the pool area, the Territorial Authority may grant an exemption from
compliance with clauses 8 to 10 of the schedule to the Act. It may exempt if
it is satisfied that compliance with the Act is impossible, unreasonable or in
breach of any other Act, regulation or bylaw, and the door is fitted with a
locking device that when properly operated prevents the door from being readily
opened by children under the age of 6 years. If the local board is satisfied
that a door within a wall in a building meets that test, the local board must
also be satisfied that an exemption would not significantly increase the danger
to young children.

9. When granting a
special exemption, the committee may impose such other conditions relating to
the property or the pool as are reasonable in the circumstances (section 6(2)
of the Act). Issues to be considered include:

a. Will the
exemption be personal to the applicant so that on a sale of the property a new
owner will need to apply for a new exemption? This might be appropriate where
the personal circumstances of the applicant have been considered as a relevant
circumstance and had a bearing on the exercise of the discretion.

b. Will the
exemption be granted for a fixed term and irrespective of changes of ownership
so that the exemption runs with the property?

c. Are there any
other conditions which should be imposed, repairs to existing fencing, or a
requirement for more frequent inspection of the pool (currently pools are
inspected every three years).

10. Any exemption
granted or condition imposed may be amended or revoked by the swimming pool
exemption committee by resolution. The rules of natural justice would however
dictate that this action should not be taken without prior notice to the pool
owner and allowing the pool owner an opportunity to be heard.

11. The
recommendations contained within this report fall within the local board’s
delegated authority.

12. The Act enables
an exemption to be granted from clauses 8 to 10 of the Act (doors in walls of
buildings) if the local board is satisfied that compliance with the Act is
impossible, unreasonable or in breach of any other Act, regulation or bylaw and
the door is fitted with a locking device that when properly operated prevents
the door from being readily opened by children under the age of 6 years.

13. The overarching
consideration in terms of the Act is that a resolution to grant an exemption
may only be made after having regard to the particular characteristics of the
property and the pool, any other relevant circumstances and any conditions it
may impose, and only if it is satisfied that such an exemption would not
significantly increase the danger to young children.

14. The local board
may resolve to grant, grant subject to conditions, or decline an application
for special exemption. If an application is declined the applicant will be
required to fence their pool in accordance with the Act.

15. The exemption
hearing process under the Act does not trigger the significance policy but it
is an important statutory function.

16. The council is
committed to ensuring that Auckland is a safe place for children to live and
play in. Pool fencing issues have a strong relationship with the council’s
strategic priorities for community safety.

Consideration

Local board views and implications

17. The local board
is the decision maker in relation to exemption applications under the Act.

18. Compliance with
the Act is a mandatory requirement for all pool owners unless exempt.

19. Council’s pool
inspectors have consulted with the applicants. The applicants have been made
aware of the Council’s requirements to ensure fencing is compliant with the
Act. The applicants have elected to seek a special exemption for individual
reasons.

Maori
impact statement

20. This report does
not raise issues of particular significance for Maori.

Exclusion of the Public: Local Government Official
Information and Meetings Act 1987

That the Rodney Local Board Swimming Pool Fencing Exemptions
Committee:

a) exclude the
public from the following part(s) of the proceedings of this meeting.

The general
subject of each matter to be considered while the public is excluded, the
reason for passing this resolution in relation to each matter, and the specific
grounds under section 48(1) of the Local Government Official Information and
Meetings Act 1987 for the passing of this resolution follows.

12 Applications for Special Exemptions under Section
6 of the Fencing of Swimming Pools Act 1987 - Attachments a - M

Reason for passing this resolution in relation to each
matter

Particular interest(s) protected (where applicable)

Ground(s) under section 48(1) for the passing of this
resolution

The public conduct of the part of the meeting would be
likely to result in the disclosure of information for which good reason for
withholding exists under section 7.

s7(2)(a) - The withholding of the information is necessary
to protect the privacy of natural persons, including that of a deceased
person.

In particular, the report contains the applicant's
personal details.

s48(1)(a)

The public conduct of the part of the meeting would be
likely to result in the disclosure of information for which good reason for
withholding exists under section 7.